Saturday, December 23, 2006

Nifong's Sinking Ship

The depths to which Mike Nifong can sink can surprise even those who have watched his performance closely over the last nine months. Yesterday, just after 11.37am, he faxed notice to the three defense attorneys that he was dropping the rape charges (but not the other charges). The same man who hogged the cameras last spring then closed down his office for a Christmas party, posting on his office door a sign reading, “NO MEDIA ............... PLEASE!!!!!!!!!!!!!”

How does this development affect what remains of the case?

1.) In the unlikely event a trial occurs, any convictions are now impossible.

With yesterday’s move, Nifong effectively impeached his only witness. On April 4, the accuser was shown photographs of the 46 white players on the Duke lacrosse team. In that lineup, the accuser made multiple errors (for starters: claiming to have seen two players who could prove they weren’t at the party and incorrectly identifying the player who made the broomstick comment). But she identified four people as possible attackers, and Nifong chose three to indict.

She did more than identify, however: she described what each of the alleged attackers did to her. By offering a new version of events 282 days after the party, Nifong argues for disbelieving the accuser’s on-tape descriptions of acts from the April 4 ID session.

Moreover, the accuser’s new version of events appears to make it impossible that one of the defendants, Reade Seligmann, could have committed the crime described by the state.

In short, whatever credibility the accuser retained has vanished.

2.) The chances of this case lasting beyond February have plunged.

The February 5 hearing (if it occurs) will consider the defense motion to suppress the April 4 lineup results. The legal justification for that lineup was already tenuous: after the accuser had failed to identify any players in two previous lineups, Nifong scheduled a third session. Only this time, he ordered police to violate their own procedures by:

(1) confining the lineup to suspects;

(2) having the case’s lead investigator, Sgt. Mark Gottlieb, run the session;

(3) telling the accuser that the lineup would consist only of suspects;

(4) reminding the accuser of the importance of making an identification.

Because the April 4 lineup not only violated Durham city regulations (which require including five filler photos per every suspect) but also contradicted the guidelines of virtually every other city and town in North Carolina, Judge Osmond Smith’s upholding it would risk the entire statewide apparatus of identification procedures.

With yesterday’s decision, Nifong has asked Smith to do the impossible: to uphold the procedurally flawed April 4 lineup, even though the prosecutor himself now denies the accuracy of much of what the accuser said in the session. No judge in his right mind would uphold a lineup under such conditions.

3.) The chances of federal intervention have increased.

Jeff Taylor of Reason displayed perfect timing with his column yesterday. He argued that Nifong’s behavior had forced “fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government”—or, in this case, the administration of justice in “North Carolina, America’s very own banana republic”? Playing off the suggestion of North Carolina congressman Walter Jones, Taylor pointed to Attorney General Alberto Gonzales as “the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials.”

By fantastically claiming that the accuser can no longer “remember” central aspects of the version of events he used to indict the three players but that he still wants to send the players away to prison for dozens of years, Nifong positioned himself as the caricature of a reckless, malicious prosecutor—unintentionally confirming the argument that Jones made in his letter to Gonzales.

4.) UNC law professor Joseph Kennedy also deserves an award for good timing.

In an N&O op-ed published two days ago, Kennedy demanded Nifong’s removal from the case. Kennedy noted that in light of Dr. Brian Meehan’s revelations last Friday that he and Nifong entered into an agreement to intentionally withhold exculpatory DNA evidence, Nifong had an irreconcilable conflict of interest:

1.) Like any prosecutor, he would want to offer the most vigorous in-court case he could.

2.) Like a prospective defendant in an ethics or possibly even criminal case, he would want to find ways to minimize the significance of the exculpatory evidence he and Meehan conspired to prevent the defense from seeing.

Yesterday’s bizarre decision can only be explained as a product of that conflict of interest. By claiming that no rape occurred, Nifong can, perhaps, rationalize the decision reached by Meehan and him that the DNA from five, unidentified males was irrelevant to the case, and therefore should be excluded in Meehan’s report. He reached that outcome, however, at the cost of fatally undermining the accuser’s credibility.

Ironically, his action should have no effect on the ethical problems the Meehan revelations will pose Nifong: even if the allegations are sexual assault rather than rape and sexual assault, DNA from five other males as part of the rape kit is clearly exculpatory material, and no justification exists for withholding it.

5.) The Nifong enablers have started to separate themselves.

On one side, Duke president Richard Brodhead has commendably if belatedly issued a public demand for a special prosecutor, and stated that Nifong needs to account for his behavior. Meanwhile, the sole remaining pro-accuser blog, Our Hearts World, temporarily suspended publication pending further information about the accuser’s veracity.

Others, however, appear determined to go down with the ship. After appearing to take a step toward impartiality earlier in the week, the state NAACP case “monitor,” NCCU law professor Irving Joyner, did his best to spin yesterday’s news for Nifong. The accuser’s credibility, Joyner conceded, took a hit. But, he argued, if the accuser’s “testimony is that she was moved from one part of the house to another against her will and there was sexual touching, then he [Nifong] can build a case on those charges.” Was Joyner troubled by a prosecutor indicting people on one set of facts and then committing to trying them on another? Apparently not.

Apparently in reward for its steadfast support of his cause, Nifong granted a three-hour interview to the Times on Thursday. (He did not explain why this interview was procedurally justified when he has claimed in recent months that the state bar's ethics rules preclude him from commenting on the case: by his own definition, then, his sit-down with the Times violated his ethics obligations.)

In the interview, he appeared to be losing touch with reality.

1.) Retreating to a line he last used at the NCCU forum on April 11, Nifong claimed that if the accuser makes an identification, no matter how non-credible, “I have an obligation to put that to a jury.”

This statement not only misrepresents both North Carolina law and the canons of the bar's ethics code (which requires prosecutors to exercise discretion in cases they try), but it contradicts Nifong's own record, in which he has dismissed rape charges even when the accuser could identify her alleged assailants.

2.) Nifong asserted that people need not worry about the apparent doubts the accuser expressed in the April 4 lineup. “You can’t always tell from a photograph,” said he. “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

Under this conception of justice, innocent people by the thousands would be charged, on the off-chance that accusers could identify them in court--when, of course, they're conveniently sitting at the defense table.

Moreover, if Nifong believes that personal identifications are so superior to photographic ones, why didn't he conduct a live-lineup session rather than a photo ID array in April? All 46 lacrosse players were in Durham, and so assembling them at the police station--with, of course, appropriate fillers==would have posed no problem for Nifong.

3.) The April 4 lineup poses no procedural problems, claimed Nifong--because it wasn't a lineup. “What is a lineup?” he mused. “What if I have no idea who did the assault?” Of course, in court papers filed on March 23, his office already had identified the 46 white lacrosse players as suspects.

Under this conception of identification procedures, due process protections would be meaningless: the police (or, in this case, the prosecutor acting as personal supervisor of a police investigation) could orchestrate a rigged lineup, and then simply engage in a philosophical debate about “What is a lineup?”

6.) Although extreme, what we witnessed yesterday conformed to a general pattern evident for months of Nifong manipulating evidence to fit his desired outcome.

Think back to late March. Until March 29, when it appears he heard back from the state lab that no matches existed to lacrosse players, Nifong publicly, and repeatedly, maintained that DNA would identify the guilty parties and exonerate the innocent. Once the tests came back without matches, the DA announced his willingness for the “good old-fashioned way” of eyewitness ID’s, without forensic corroboration.

Or consider the length of the attack. In springtime police statements, the attack lasted 30 minutes. Once Reade Seligmann produced unimpeachable electronic evidence showing he couldn’t have participated in an attack lasting 30 minutes, the DA speculated that the attack lasted between 5 and 10 minutes, since “when something happens to you that is really awful it can seem like it takes place longer than it actually takes.”

This blog is entitled Durham-in-Wonderland because everything about this case is upside down. Nifong decided the outcome—he would charge the players with a sexual offense—and has repeatedly, and shamelessly, manipulated the evidence to fit his desired outcome, rather than allowing the outcome to be shaped by the evidence.

78 comments:

bill anderson
said...

No matter what Joyner and Duff Wilson tell us, this case is not going to trial. I agree with K.C. that it is doubtful that it will even make it to the February 5 hearing.

Judge Smith is not going to permit himself to be a laughing stock, and Nifong's antics long ago destroyed any credibility that the DA's office might have had. It will be interesting to see what happens over the next several months, but I would not want to be a man with the name of Michael Nifong.

By the way, I hope he does not think that Joyner and the NAACP are going to "stand by their man" when this thing finally crashes and burns. Nifong used them, and they used him. It is going to get really ugly from now on.

this latest shows that while you cannot in fact buy an election in Durham county, you Can in fact buy justice. The Duke 3 spin strategy has worked and Nifong is going to dismiss the case and get on with his cruxifiction, which he knew is coming as he dared to bring charges made by a poor black woman againist rich whites, which whites still will not allow. Nifong must now reap his punishment. The only problem is that if you listen to the talk radio stations in the area tonight, the community is still deeply divided and the black posters are sticking with "something happened" and they are very angry at the defense and the Duke 3 and not Nifong so the situation is getting a bit volatile, unfortunately and for the first time, I think there may be violence in durham.

Great post. It has amazed me from an early time in this twisted story how Nifong has repeatedly been willing to disregard (and implicitly impugn) the sworn, written testimony of his only witness. Even before this latest example of , " Well, would you believe this?" redo of the accusations, he already rejected the bulk of the accusers story. How long it lasted, condoms uses or not, phyical descriptions, etc. - all were repudiated by his constant reconfiuring of the case. But the thing I find unspeakable about Nifongs latest move is that instead of admitting the problems with her credibility resulting from the revelation of the DNA open house party found in her crotch, he picks this moment to allow her make up another version and pretends to believe it I have to stop for now or I might write how I really feel which would get me onto the wrong kind of FBI list.

Give me a break with this "rich whites will not allow." The members of the black community chose to go along with the hoax, and even as the evidence came forth, people stopped up their ears and made up conspiracy theories.

Maybe we can have a riot, and they can burn down a few buildings or kill some people. Don't blame that on the "rich whites."

Is the 12:05 poster trying to say that there really was a rape, and that all we have seen is defense spin? If Crystal were accusing black males of the same thing, would you and others see throught the lies then?

Face it. You wanted this story to be true, and believed that your race entitled you to a false conviction. Go ahead and burn down Durham. In effect, you already have done it by making your city a laughing stock and a poster child for false accusations. Maybe you can entice Tawana Brawley to be your next mayor.

To 12:05 Given what you just wrote, you must certainly see the neccessity of a change of venue. By he way, why are folks angry with the defense lawyers? How many times have they had to change their story? On the other hand, maybe it would be best for you all to throw an old fasbhion Watts-1965 style street party over this. Just go ahead and take the mask off the prevailing attitudes in your fair city.

It sounds very much like ANON 12:05 AM still holds on to the belief that "something happened". Racial slurs, yes, but rape? I think not. And so do many other people of color willing to look at the facts.

Then again, many people of color -- too many -- still hold that O.J. did not dispatch his wife and the Goldman kid.

When will content of ones’character and not the color of ones' skin be the determining factor? People of color, heed the advice of MLK rather than cling to old stereotypes.

Wouldn't there be DNA on the supposed broomstick which in turn would then have been transported to the victim, or is the next change in her story going to be that they handled the broomstick with gloves on?

Just looking at the "facts" - we have a young lady who was raped by multiple people. She is uncertain, less than 100%, exactly who did it. In the horror of the moment it is understandable she is uncertain who did it and what exactly took place. She did not have sex with anyone else in the week prior to the events. We have DNA samples from five people who certainly had sexual contact with her. There were people at the party that were not on the team. Now ALL this info was available to the DA last spring/summer. What am I missing here? Where is Rev Jackson and Rev Al? Why are they not demanding that the Durham police search for these 5 individuals? Apparantly one of them had a mustache last spring. That fact should help some.

That's exactly the point. Most people with half a brain are looking at the facts that this person is a compulsive liar. Who was at one time willing to run over and attempt to kill a cop to get out of going to prison. I doubt it's highly above her to lie about a rape to get out of serving more prison time.

Occam's razor -- All things being equal, the simplest solution tends to be the best one. In other words, when multiple competing theories are equal in other respects, the principle recommends selecting the theory that introduces the fewest assumptions and postulates the fewest hypothetical entities.

Nifong is trying to cover himself. In his interview he stated if she can't recognize her attackers (can't call them rapists anymore) at the next hearing, he'll drop the charges. Sooooooooo to move this along, why doesn't he just put the three guys in a real lineup and have her take a look NOW?He is going to hang the false accuser out to dry.

Old CY is a player in all-things-Mikey.,,,to be sure. Most little women go along with their husbands, especially if they are the provincial whitebread type who wish to move up the "social ladder"--such as it is in Durham--and be some minority's "Great White Hope". Never forget that Mikey and Cy are "good Liberals".

Since all the marital property---as some other curious poster outlined---is in big Cy's name, both know what the other is doing.

Looking at those two pos, I suddenly remember why I have always been afraid of marriage.

One might end up with a creep like Mikey........and for financial reasons and family/children reasons, stay with him.

(Post Script)......if you have seen the woman, she must consider herself lucky to have landed Mikey.

Apparently Victoria Peterson did not hear this song after the Michael Peterson case:

We'll be fighting in the streetsWith our children at our feetAnd the morals that they worship will be goneAnd the men who spurred us onSit in judgement of all wrongThey decide and the shotgun sings the song

I'll tip my hat to the new constitutionTake a bow for the new revolutionSmile and grin at the change all aroundPick up my guitar and playJust like yesterdayThen I'll get on my knees and prayWe don't get fooled again

The change, it had to comeWe knew it all alongWe were liberated from the four-minute song And the world looks just the sameAnd history ain't changed'Cause the banners, they all flown in the last war

I'll tip my hat to the new constitutionTake a bow for the new revolutionSmile and grin at the change all aroundPick up my guitar and playJust like yesterdayThen I'll get on my knees and prayWe don't get fooled againNo, no!

I'll move myself and my family asideIf we happen to be left half aliveI'll get all my papers and smile at the skyFor I know that the hypnotized never lie

Do ya?

Yeaaaaaaaaaaaaaaaaaaaaaaaaah!

There's nothing in the streetLooks any different to meAnd the slogans are replaced, by-the-byeAnd the parting on the leftIs now the parting on the rightAnd the beards have all grown longer overnight

I'll tip my hat to the new constitutionTake a bow for the new revolutionSmile and grin at the change all aroundPick up my guitar and playJust like yesterdayThen I'll get on my knees and prayWe don't get fooled againDon't get fooled againNo, no!

SI.com: What is the basis for the dismissal of the most serious charges against the three Duke lacrosse players?

Munson: From the beginning, the police and District Attorney Mike Nifong had no forensic or scientific evidence of a rape. There was no evidence of the kind of physical injury typically seen in a forceable sexual assault. The only evidence of a rape came from the accuser. When she changed her story on Thursday the prosecution had no remaining evidence to support the rape charge.

SI.com: Is the dismissal of the rape charges a surprise?

Munson: Yes, but it is not a big surprise. There have been serious doubts about the rape charges from the beginning at the time of the arrests. The lawyers representing the Duke lacrosse players have been successful in raising significant doubt about the charges and the character of the accuser. The timing of the dismissal is a big surprise. A dismissal like this ordinarily comes on the eve of the trial.

SI.com: What's next for the accused Duke players?

Munson: They still face some serious charges. There is little doubt that something unsavory happened at the party on March 13. After the dismissal of the rape charges, it will be easier for the accused players to attempt to settle everything with a guilty plea on lesser charges. The likelihood of a trial on any of these charges is now greatly reduced.

SI.com: Can the Duke athletes now consider any action against prosecutor Nifong or the accuser?

Munson: It's possible that the Duke athletes and their attorneys may discuss the possibility of a malicious prosecution lawsuit against Nifong or the accuser. The wiser course would be to drop any such idea and seek a final resolution of the remaining charges.

Contrary to the SI story, the timing is not surprising. Everyone is traveling right now or off of work and out of usual routine due to Christmas. As a result, Nifong decided to let the information go right before the long weekend started, when no one was paying attention.

He also dropped the rape charge after Bannon made Meehan his bitch on the stand.

Nifong's cavalier attitude about all this is unbelievable. You can't always tell from a photo? She'll get a chance to be sure when she sees them in court? So if Precious prances in and says "oops" he'll dismiss and say - oh well. Who cares about the nine months of emotional and financial hell these families have been through. Oh well.

Frankly, I think he may be telegraphing his exit strategy. I think Precious is going to get "confused" again in Feb. if not before. She just isn't sure about these guys anymore. She's going to say she made a mistake about at least one of the guys. Nifong will dismiss the charges piecemeal player by player to cause maximum suffering for the families.

there will be no change of venue and no trial. nifong has given up; the full dismissal is only days away. some people in the black community have hated the way the defense has talked about the accuser, given her medical files to anyone who asked like Dan Abrhams, tried to manipulate the election and have tried to whitewash the racist behavior of the Lax team. The vilification of Nifong is another factor and some in the community see him as a martyr; he is only being criticised because" he charged some rich white boys for a change" in their view. I was at the NCCU homecoming parade and you should have seen the people there shaking Nifong's hand and the people saying nice things to him--they do see him as a minister of justice and see the Duke 3 and the defense as obsturcors of justice. Since you are not from around here let me clue you into something that you do not know and that is not on the TV: Cheshire and Wade Smith are known for representing the rich and guilty and that us playing a role as well in the perceptions of some in the black community. Those lawyers are who you get if you have done the crime" Cheshire and smith most recently defended a murderess who poisoned her young Aids researcher husband. They helped her evade justice for 4 years but the Wake county Da finally forced another defense lawyer for the woman's lover(who committed suicide) to tell what his notes said. Suddenly, Cheshire and crew were in court on TV with this "innocent" young mother who Cheshire gave press conferences about earlier and who he would not allow to talk to the police(sounds familiar, doesn't it) and suddenly she was taking a plea to avoid the death penalty! that happened only a few months before th LAX case; people around here remember that and they know these defense people are professional spin doctors who defend people who are guilty routinely so they are not and never have been absolute truth tellers. Please note, there is a gag order and they are still giving interviews like there is no gag order. You all would be surprised to know that there are complaints against the Defense at the Bar, too.

You are a blooming idiot. No one needs to know about "things around here" to know that Joe Cheshire and Wade Smith are high-end attorneys.

It is obvious that you are ignorant of how the world works. Who gives a f**k who they defended before? That's how the law profession works. You defend whoever calls for help. There is no connection to prior cases.

The defense lawyers defended someone who might have been guilty? Shocking... What do you think defense lawyers do? Hopefully most of their clients did what they are accused of. Hopefully innocent people are not accused of crimes all the time. As for the gag order? Why did Nifong just give an interview to NYT? I guess he doesn't care about the gag order?

I agree bill anderson. This could get ugly as the end game and blame game goes on.

There were two bomb shells on Gretta's show on FNC tonight. Gretta reported that twice she wanted to not go forward but Nifong pushed her to continue.

Also someone close to one of the families said they want Gottlieb investigated as much as Nifong. Gottlied does not have any immunity and he appears to me to be being set up as the patsy. If I were in his shoes, I would be talking to the US Attorney trying to cut a deal. Meehan may already be doing that and the first one in will get the best deal.

1:15 AM How can you have a fair lineup now. The 3 accused mens pictures have been plastered all around Durham. They have been in papers across the globe. Their pictures have also been on tv hundreds of times. I think you got people in China that could id them in court now.

Mr. Nifong, a 28-year career prosecutor, said he had not been contacted by the Justice Department, which has been asked to intervene by a North Carolina congressman. He declined to say, though, whether any state authorities, like the State Bar Association, had contacted him.

Munson: They still face some serious charges. There is little doubt that something unsavory happened at the party on March 13. After the dismissal of the rape charges, it will be easier for the accused players to attempt to settle everything with a guilty plea on lesser charges. The likelihood of a trial on any of these charges is now greatly reduced.

After reading that statement I did a little research and found this April 19th SI interview of their "legal expert", Lester Munson.

SI.com: A report has surfaced that one of the players charged, Reade Seligmann, has an alibi -- including ATM receipts, a statement from a cab driver and evidence he was at his dormitory -- indicating he had left the party before the alleged incident happened. Is this credible evidence?

Munson: It's potentially credible and can be proof of his innocence. But we should remember that the presentation of an alibi can be tricky and dangerous. The police and the prosecutor will scrutinize this evidence in exquisite detail, and if they find something is askew, that something doesn't fit in the alibi evidence, they will not hesitate to charge Seligmann with yet another crime. That would be obstruction of justice. The defense lawyers know they must be very careful in the presentation of an alibi. The disclosure of this evidence so quickly after Seligmann's arrest indicates we must be very careful and slow to evaluate it and its credibility. You don't see many alibis in criminal cases -- it's a very rare thing. Ordinarily, 99 times out of 100, the police have the right guy, and you'll find that most people arrested were involved in something. Getting the wrong guy is very unusual.

I wonder why we even bother to have trials in this country because according to Munson if you are arrested you must be guilty. I believe this puts the "something unsavory happened at the party" statement in the proper perspective, namely that it was made by a fool.

anonymous 12:05 KC posts a long article with an extensive facts to back up his points. You reply with no facts, but instead describe a narrative based apparently on what you wish the facts were. Then you end with a threat that others might engage in violence who apparently, like you, are not willing to consider facts that contradict their prejudgments. Your post I think helps explain alot about why this prosecutor is so out of control and does not seem concerned with political fallout.

12:05 and 2:50, Once upon a time, I and a lot of other people thought "something must have happened," too. Even when the DNA evidence came back negative, I still thought "something must have happened" although it was clearly not rape. I was still puzzled by the injuries that were allegedly in the medical report. Then all three defendants took lie detector tests and passed...even though the questioner asked every question about every possible scenario I could imagine. And the mental health and possible drug use issues came to light along with the accuser's previous accusations against three other men that sounded remarkably similar to the current case. And the medical reports found their way into the public eye. The "injuries" amounted to...nothing in fact. At that point I HAD to let go of the "something must have happened" thinking. I had to acknowledge to myself that it was very possible NOTHING happened and wait for EVIDENCE aside from the accuser's story that something happened. That evidence never materialized. In fact, an enormous amount of important evidence came to light that pointed to the clear innocence of the defendants, the criminal and unethical behavior of Mr. Nifong, and the false/confused/incorrect testimony of the accuser. Except for the alibi evidence, almost none of this had anything to do with the defense lawyers. It came from Mr. Nifong's discovery file. The defense lawyers have done NOTHING wrong; they have done their job beautifully. Mr. Nifong has not. If your friends cannot understand this, now would be a good time for some black leaders with some understanding of the legal system to explain it--Irving Joyner being an obvious choice. The black Durham community will have great difficulty recovering from the stigma that will attach if they cannot sort out fact from fiction in this case. A riot would be completely devastating for THEM, and a good bit of responsibility for preventing such a thing rests on those who should understand this case and have credibility in the black community.

the only problem with the blacks burning durham is that the federal government will just step in and rebuild it the way it rebuilt LA.

i've argued for months on this board that even those who support the prosecution know that nothing happened to this victim.

all white people need to take this as a lesson in diversity. durham is a black town run by black people. this is a mere taste of what's to come as our society becomes more diverse and white people begin to lose (or give up power) in years to come.

I read the Herald-Sun today and again it was a newspaper in denial. The only thing on the editorial page was a happy-talk editorial on "the weekend" and some the-lacrosse-players-are-a-bunch-of-rapists letters.

The N&O's editorial was a little bit better, although it was full of deference to Nifong. I think these MSM types always are so deferential to government that they still have a Pavlovian response whenever someone from government speaks.

I find the response of the "representative" of the black community most interesting. Cheshire and others in this case have represented black clients, often pro bono. Yet, when the lawyers somehow do not give up innocent people when the black community desperately demands they are guilty, they turn on the lawyers.

I also read the response of the head of the state NAACP, and it was pathetic. We are hearning nonsense like "we should have supported the accuser more," and the like when the blacks in Durham believed every word she said, set up a supportive website, and had rally after rally.

You see, they believed that since they had the votes, they could control the process. But they could not control the truth, nor could they make up a "new truth." Like the Gang of 88 which operates on the Marxist notion that truth is whatever people with the guns say it is, they believed they could push this thing forward with brute force.

This is a shameful moment, and once again we see another Tawana Brawley case. And just because the NAACP will insist that there really was a rape does not mean it happened. They can choose to believe a lie, but in the end it still is a lie.

If someone is falsely accused of a crime, pleads not guilty, and the charges are dismissed, he or she may be able to file suit against the person who brought the charges. For example, if a private citizen files a false criminal charge against another person, or falsely makes a complaint to a police officer that results in another's arrest, and if no conviction results, the accused may be able to sue the accuser for malicious prosecution. If a law enforcement officer was involved in bringing the false accusations, the accused may also have a claim for false imprisonment or for a civil rights violation, often called a Section 1983 action after the provision in the federal law creating that cause of action.

In a malicious prosecution case, the wrongfully accused plaintiff can recover his or her actual injuries, which include attorneys' fees to defend the underlying case in criminal court, the cost of any bail bond, lost wages, damages for embarrassment and humiliation, and damages for harm to his or her reputation. In some cases, punitive damages may also be awarded, above and beyond the actual damages suffered, in order to punish the person who raised the wrongful accusations and to discourage others from engaging in similar conduct.

To successfully maintain a malicious prosecution case, the plaintiff must show not only that the defendant is responsible for causing the criminal charges to be brought and that the charge was dismissed in criminal court, but also that the defendant had no reasonable basis on which to bring the charges in the first place. Generally that requires proof of lies or similar wrongful conduct. Simply showing that the charges were dropped or that a not-guilty verdict was reached is insufficient to show that the malicious prosecution defendant engaged in wrongful conduct, since in many cases the prosecuting attorney will dismiss a criminal case or juries will find a defendant not guilty based on insufficient evidence or the existence of a "reasonable doubt," even when they believe the accused actually committed the crime he or she was charged with."

Sounds like when these charges go away, several folks in the DPD may have a problem. I'm not sure if the DA would open himself up as well since he was actively involved in the investigation. I've heard some say that DA's are normally immune from prosecution, but if there were an exception for egregious conduct, I think this would fit.

In his Times interview, Nifong telegraphs that he is going to drop the case in February. He is leaving himself a face saving exit. The accuser will be unable to identify the "attackers" in court, Nifong will dismiss and hope that it all goes away.

The NY Times failed to ask important follow up questions, talk about a puff piece.

Nifong said he "forgot" or "missed" the evidence with the volume.

First, he filed papers talking about privacy, Meehan says they talked about privacy, is Nifong lying or is Meehan lying. (We know the answer)

Second, he chose to try this case, he has destroyed a community over this case, but he really did not know the contents of what the most important evidence is? Did he actually go to court and sign papers that were false becuase he did not check, even as to something as important as this evidence. Equally as shocking as the first possibility.

Third, if the photo array was not a line-up, then what identification served to support the indictment.

Fourth, why wait to talk with her.

fifth, why believe this version. If you get to pick a version, why do a new line-up if she wasn't sure.

It will get worse for Nifong. First, while Duke has produced the "blame everything on the LAX players" talking points, sooner or later the university will turn on Nifong himself. Brodhead's comments are only the beginning.

Second, the black community will abandon him for "not supporting the accuser." Third, the MSM finally will turn on their man, once he stops being useful as a "reliable source."

No one wants to be caught on the losing side here. That is why I described Brodhead's comments as "too little, too late." They reflect someone who always wants to be standing with the winners.

When Nifong seemed to have the upper hand, the people at Duke stood with Nifong. Now that he is becoming a pinata, they will stand with whomever looks to be on top.

Now, perhaps they will offer K.C. an endowed professorship. That would be the greatest irony of all! He certainly is a better man and better scholar than any of the Gang of 88.

I need to add something else. Nifong's latest comments are aimed at trying to make people think that he still is in charge, and if he wants it to go to trial, it will go to trial. He knows better, as this thing has spun out of his hands.

Because he and his henchmen were the primary sources for the MSM pieces, the reporters for these "news" outlets right now have nowhere else to go. I find it interesting that GMA got K.C. Does anyone think that GMA even would have given him the time of day a month ago?

Not only is Nifong's little ship sinking, but the rats are leaving. Stay tuned and watch the show.

After watching Greta last night it is apparent that the screw is starting to turn. Only Gloria Alred still believes that the fong must still have something he is holding back. LOL - yeah it's called exculpatory DNA evidence.

Even the black attorney on the show, I forget his name, is pretty much saying that the fong duped the black community.

When asked about the DA sperformance, the other panel members, gave fong an F and believe he should be criminally prosecuted. Bondi a FL DA said she spends more time interviewing accusers about simple assault cases than the fong spent with precious.

The blood is in the water and the media feeding frenzy is about to start. Lawyers feeding on lawyers -what could be better. This will not go to trial.

Why does it appear that the local news outlets are so intent on supporting Nifong? Simple, it's no longer the DA they trying to shoreup - it's Brodhead, the NC State Bar, and the local political hacks who did NOTHING to bring this hoax to an end. CYA TIME.... The longer the hoax survives, the longer the enablers can avoid recognition.

Brodhead leads the pack with the Duke 88 and Trinity Park Pan Bangers, but even their handlers see the sun rising and don't want to be left to be seen with their heads buried in the sand!

The enablers need to take their lead from Cousin Jakki: look really hurt and distressed that they were soooo fooled by Nifong, start the sympathy song for the poor and misunderstood Crystal, play the "drugged beyond recognition" story again, and start the LA Watts threat (the best thing that could happen to Sodom and Gomorrah/Durham is burn it down and start over).

KC your reporting has been one of the best things to come out of this mess. The laws of nature remain in balance, for every really bad thing, some good things emerge. Keep the pressure on!!!

Some more thoughts on Nifong's line-up comments in the New York Times.

If uncertainty is reason enough not to go forward, then why did Nifong go forward after the accuser said it "was too hard." If uncertainty was reason enough not to go forward, why go forward when she identified people who were not at the party. And, of course, since all 46 lacrosse players were willing to provide DNA, why not bring them in for a line-up.

also, is Nifing really saying that he indicted these players without a line-up? Somebody should go back and check his statements.

His comments to tne New York Times are bizarre. He sounds like he is doing nothing more than trying to make all his wrongdonig accidental, and minimize bar punishments.

from a non-lawyer: My thanks to you KC for the wonderful work you have done. It is a good thing I retired recently so I have sufficient time to follow the twists and turns of this case.Several comments: 1.Is Nifong even familiar with his case file? As KC points out, it is impossible for Reade to have committed a crime under the most recent version of the AV. 2. I can only wonder if there is other exculpatory evidence hidden and/or destroyed by Nifong and his cronies. 3. Will Judge Smith now take any action before the February 5 hearing? 4. In the NYT article by Duff, Nifong does not say one way or the other whether he has heard from the state bar regarding his "alleged misconduct". Has Nifong retained legal counsel or is he stupid and arrogant enough to represent himself. I know, why does he need an attorney if he didn't do anything wrong! 5. Broadhead finally made some appropriate comments. Duke's policy apparently is not to allow indicted students to enroll. However, policies are only guides to thinking, and the right thing to do now is to welcome these students back in the Duke family, however dysfuctional the Duke family might be. Maybe they will choose not to enroll, but it should be their choice.

He has admitted to the New York times that in the most important case of his career, one that he staked the future of your town on, that he gave seventy interviews about, he was too lazy or busy to read the discovery material he was required by law to turn over. (If you believe him). What type of lawyer, let alone the minister of justice working the most important case of his career, does not know what information is produced to the other side.

If he was a first year associate at a law firm fresh out of law school, he would be fired on the spot.

Regarding the defendants return to Duke: Do you really think you could trust Duke to protect them from Durham's revenge machine? DPD protect the guys? No way I'd let my kids return to that shooting gallery - their life wouldn't be worth a dime.......

By Nifong's own words, he should never have indicted Collin, Reade and dave. He says now that IDs made from photographs are not reliable, and that only whenn the accuser sees the suspect face-to-face can she truly identify him. He said this obviously to give himself an out--he says he'll drop charges if she cannot ID her assailants with certainty in February--but he impeached himself. If, in fact, a photographic ID is not really reliable as Nifong now says, why did he not do an actual line-up before indicting? If, as he says, his only evidence is the accuser's word, what investigation did he do to verify her credibility? It would seem the answers to these questions point directly towards malicious prosecution.....

10:18 the Durham PD did destroy the audio tapes of the night of 3/13-3/14, knowing that the defense had a motion to preserve them.

Judge Stephens agreed that the defense should have them. Nifong let them destroy the tapes. The only reaon I can see for that is there was proof that crystal was faking and nothing really wrong with her.

to 1029 from non-lawyer: I agree with your comments about would these young men be safe in Durham and Duke. But still Broadhead should have the courage to make welcome them back. Whether they return should be their choice?

TO 12:05amIf they burn it down it will be an improvement.That's the result of stupidity and entitlement being partners.The worst enemy of the black community stares at them in the mirror every morning.All of this because of their hate and as the rappers would say, those great cultural poets of the 21 century back community, a "lyingnigga ho bitch". Forever known as the LNHB not the AV.Again, true to form, the blacks will not take responsibility for their choices and the next time something like this happens to one of them there will be stone cold silence from the white community, just like they have done.If they are going to "leave the plantation" ,as they say, then they need to get leaders and take actions that contribute to the common good not just their narrow distorted hate driven interest. If the majority of whites were as they say...they would still be on the plantation. Then actions of American whites ended European slavery in America, at a great cost,and put into place the greatest set of civil rights reforms of any country in the history of the world. They have been given billions, maybe trillions, of dollars in aide and still this is what you get 4 generations later.It truly is there move...

Kemper - I said it before, I’ll say it again, the only person going to jail over this event, is Nifungu.While focusing only on one man and demonizing him for all problems (a la bin Laden) is convenient and what the media actually prefers in it's laziness - you don't get a mess this big without collusion by others in criminal behavior or a pack of moronic enablers and ideologues.

What Crystal GAil Mangum did was criminal and violates Federal civil rights law. What Nifongs two cop henchmen did - and they were with Nifong at every decision point - was false grand jury testimony, manufacturing evidence (Gottliebs suspect description notes), violating state and local ID protocols, searches without warrants, intimidation of witnesses, co-conspiring with Nifong to conceal evidence.

Both Himan and Gottlieb have no immunity, no shield of Good Ol' Boys of the Bar taking care of their own - that is protecting Nifong from state and local consequences.

They are wide open to the Federal Law Enforcement Misconduct Statute and can drag down Nifong and any other Durham PD, town officials also conspiring to violate civil rights to save their own asses and pensions. Because Niphong has no Federal immunity, and the Feds would laugh at a delegation of Good Ol' Boy lawyers saying buddy Mike shouldn't pay a cent or serve a day in jail if the Bar gives him a letter of reprimand. The Feds can take him down for conspiracy to commit election tampering, conspiracy to deprive suspects of their civil rights, suborning grand juries - Niphong has no shield from that - but you need cooperating co-conspirators to come forth 1st.

Fixating on Niphong is perhaps the worst strategy - given his multiple state and local protections - The best anyone who has tracked this case can hope for is the Feds come in force and drive right by Nifong's Durham courtroom offices to drag a number of cops, Meehan, and Mangum in for interviews and frank talks with Federal prosecutors. Then to get a Fed court order to query each of the 18 grand jury members on Mangum's rape case to see if Nifong or his only two witnesses (Himan & Gottlieb) lied under oath to the jury. Then to defense lawyers for all the info they have and basis for Federal civil rights allegations. Then to interview Nifong's DA assistants. Then back to Durham PD to investigate other allegations of a pattern of misconduct the town, state of NC failed to correct. To Duke and N&O to investigate who made and distributed the vigilante posters.

All while Nifong sits and stews, suspended as DA by court order pending the Fed investigation completion and indictments.

Then and only then to Mikey, starting with his public lies meant to taint the jury pool at the beginning, his lies in open court. Then if they have Himan or Gottlieb turned, or the mayor, or police chief - to explore if Mike Nifong engaged in conspiracy to rig an election, conspiracy to grand jury tampering, conspiracy to defraud the state of funds on pursuing charges he knew were lacking probable cause, and his actions as a conspirator to violate the rights of the Accuser (possibly), Kim Roberts, the taxi driver, the 46 Duke students initially accused and unfairly villified, and finally the 3 indicted suspects.

And finally, though they don't get criminal charges, 2 groups deserve all the criticism that can be directed at them.

(1)The black voters that defended the prosecution and kept Nifong in power despite an avalanche of news that the rape was bogus reflects very poorly on them and their anti-white racism and there's no escaping that. If white voters had overwhelmingly backed Nifong in prosecuting black men obviously innocent of rape charges, every media center and every black leader in the nation would not be as willing to overlook the role the electorate plays in all this as they have been.

(2) The people from Duke faculty, media, feminist activists so poisoned by PC and the cancer of identity politics that they were compelled to take their political beliefs into an automatic presumption of guilt of people by their race, gender, and class.

In reading the Washington Post article this morning you turn pages past their regular tribute, "faces of the fallen" to our honorable sons and daughters who have given their lives so others can have a system of democracy and justice.

The blatent actions and inactions of disregarding justice and misuse of the democratic system by the citizens of North Carlina must leave our troops wondering what in H--- they are doing, and why should they be comitting so much to protect and establish the best of American democracy when those at home who are privledged to administer it, such as in the DA office, the courts, DPD, city council, DNA contactor and city education institutions, see no problems with trashing basic protections.

It's pretty clear that the events orginally promoted did not occur. It's very sad and scary that what has emerged is from the Durham mis-administration of justice can exist in the US.

In Iraq, it took us a while to learn the unseen threats are IED's, In North Carolina we are learning there are unseen threats to justice, regardless of the crime or race.

There are plenty of dedicated and honorable Americans that live for the protection of rights located nearby at Camp Lejuene that should be invited in to support the protection of rights with the citizens of Durham.

Cedarford, Without doing a detailed analysis of every point...of course you are correct. I hope we see action along those lines. I also hope for widespread, in depth public understanding of the facts and implications of this situation.

Is 18 the number for the grand jury? And could the feds interview all 18 to find out what lies were told them by Nifong and the cops? Perhaps there is a way to get a belated idea of what happened in the grand jury room. Are the names of the grand jury members part of the public record?

I agree with those posters stating that Duke should offer KC a position on the faculty. Don't know what Duke's PR firm is advising and how much they are being paid, but this is the most logical first step in getting Duke headed back in the right direction.

imo, cedarford's posts r among the best on this blog--cunning and well argued

1 problem with last post: let's call it the Crystal Mangum Horror:

forget for a second that she's probably a very troubled bipolar alcoholic--it's not relevant here

what is unconscionable is that the law in US does not acknowledge the harm false accusers inflict on men: we do not have a law that punishes predators like precious or tawana:

KC, as an historian, this is something u must address, because this aspect of the case has historic (cf "historical") ramifications--we need a law that DESCRIBES the evil wrought by precious, et al--let's call it the "predator statute"--write to your representatives--the euphemism "false accuser" is like calling a murderer "temporarily deranged"

brodhead and the board of trustees have to go--they failed to safeguard their charges

they r miserable cowards whose presence at duke will guarantee duke's fall into the 2d tier

I have read that Duke applications are down 20%. After the way Duke University has thrown these players under the bus , why would any one send their kids to Duke or any university in North Carolina. Not only would you need a college fund but also legal one as well.

I kind of have this theory about Nifong. By proceeding with this case. even knowing he can not likely win any conviction against anyone charged, I suspect that as long as he proceeds and claims his actions were “for the victim,” then he can probably not be sued afterwards by any of the defense members. I wonder if he were to totally drop all the charges against all three suspects, then Nifong might be susceptible to both possible civil lawsuits and possible criminal charges against Nifong. His “strategy” might be to proceed to avoid the potential negative sanctions against himself, and it really may be nothing about actually attempting to provide “justice“ to the alleged “victim.“ Anyone thinking the same???????

The LARGER issue that the media is avoiding because of it's racial overtones...the proverbial elephant in the room...is the role of Durham's black community...in the deliberate, calculated, and purely racist strategy of DA Nifong to dishonestly mobilize the black electorate of Durham, for the sole purpose of insuring his election campaign. Nifong was apparently SO CERTAIN that he could easily manipulate (a la OJ) black voters by fabricating an "us vs them"...ahem, black vs whitey...scenario, that he was willing to push forward with a preposterous case, COMPLETELY DEVOID of any actual evidence. Stunningly, his strategy ultimately proved to be successful, black voters shamelessly flocked to the polls and supported Nifong with OVER 90% of THEIR vote.

The week prior to the election, some TV pundits speculated that the black community would turn against Nifong, because he was so blatantly playing them as mindless sheep, as fools. Boy were those pundits wrong! Never underestimate the power of anti-white racism when yielded by blacks with an agenda to "get whitey". Facts (or lack of facts) are irrelevant, it's ALL ABOUT RACE.

Of course, it's difficult to actually BLAME Nifong for utilizing a tried-and-true election strategy, created by the Democratic Party and used virtually EVERY election season to dishonestly fire up their black voter base. Let's see..."the Confederate Flag"..."George Bush took part in dragging James Byrd to death"..."George Bush delayed the rescue of blacks after Katrina"..."Republicans want to prevent blacks from voting"...the list goes on and on...and it's not gonna stop...after all, IT WORKS.

poor 12:05-- I really don't believe he/she is that stupid. How much scientific evidence do they want? How much can they understand? I don't want to believe anyone just can't get it. They are doing this just to get a rise out of the rest of us. I would bet my house that there are no riots bc there are not that many stupid people even in Durham.

I'm sorry but anyone that stands for truth not for a race can see this prostitute is lying. Her very existence is of shame and she just another hoe out on the streets. Let those good boys good. Who care if they are rich and she is poor. Those boys are headed for a good life while this prostitute will probably be found in some dumpster somewhere after this case.

Everyone thinks the world is going to crumble around Nifong now. I think he is going to come out smelling like a rose - or at least not like the fertilizer. He knows the case is over. But he doesn't want to take the fall for losing the case. Nifong dropped the serious rape charges last week, but left the other charges pending. He could not dismiss all the charges because he created such a racially divisive atmosphere over this case that were he to do that, there would be race riots in Durham.

So, behind the scenes, he has orchestrated the bar complaint which will require him to recuse himself from the case until the ethics complaint against him is resolved. The bar could have waited until after the case to file the case. But their clearly unprecendented action will require Nifong to recuse himself now.

So, whoever takes over will probably end up having to dismiss the rest of the charges, allowing Nifong to say that had the ethics charges not been brought he would have been able to continue the case and seen that justice was done.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review